The Inter-American Human Rights System is under threat: Implications for the Sexuality and Human Rights Agenda

15 Oct 2012

By Marcelo Ferreyra*

The Inter-American System of Human Rights (IASHR) and the Inter-American Commission on Human Rights (IACHR) are undergoing a process of re-structuring led by member states. This process has begun as an assessment of the functioning of the Inter-American Commission on Human Rights aimed at the strengthening of the Inter-American Human Rights System. Civil society organizations directly engaged with the ISHR have welcome and positively evaluated the initial development of this process. Yet as the process evolved justified doubts have arisen in relation to its direction, as there are signs that what is politically occurring is not exactly aimed at strengthening the IASHR.

Various governments, democratically elected, have questioned the effectiveness of the IASHR and the very role of the IACHR. Not casually this questioning occurred after the IACHR had issued decisions, or had taken actions, in relation to which these governments were not always in agreement. As civil society organizations, we could not avoid suspecting that these negative reactions to these decisions have somehow infiltrated the political bodies of Organization of the American States (OAS) leading towards the current harsh debates on the need to re-structure its human rights architecture.

When states have created the supranational human rights surveillance mechanisms or when they sign treaties they do so because they recognize the great power inequalities exist between persons and groups and the states’ strength. They are also recognizing that an international complementary system is necessary to ensure that concrete measures of redressing justice are enacted, whenever national judiciary systems fail. In other words, in doing so states admit that victims of human rights violation who have not been able to access justice, or to have their rights fully protected, under national jurisdictions, often find themselves impotent in front of powerful governance apparatus that may have absolute privilege of access to information and, most principally, hold the monopoly over law enforcement.

Democratic states have, therefore, as one of their duties the enhancement of all efforts required to:

Strengthen the IAHR system, in order to make the implementation of its recommendations and decisions effective

Fulfill their own obligations as collective guarantors of the system, as it has been defined in the international instruments they have ratified

To provide the system with the necessary financial resources, as to ensure the proper performance of its functions.

In those contexts where state apparatuses deploy their power through the imposition of restrictions of rights based on tradition and cultural values — which usually feed sexism, homophobia and transphobia — it is very difficult for many persons to make their own choices regarding reproduction and to exercise freedom in relation to their own sexuality. Violations of sexual and reproductive rights result in preventable maternal mortality, unsafe abortions and hate crimes. In response to these injustices, persons have begun to raise their voices and to affirm that sexual and reproductive rights are non –negotiable human rights. The coalition of LGBTI organizations of Latin American and the Caribbean and the Campaign for and Inter-American Sexual and Reproductive Rights Conventions have in, in recent years, systematically advocated for the inclusion of these rights in the debates and the norms adopted by the IASHR.

Under the impact of these advocacy efforts, OAS member states have also started to seriously take into account sexual and reproductive rights issues. They have also adopted measures against discrimination and human rights violations in these domains in these domains. In addition, OAS member states have also requested “…the IACHR to perform a study on existing laws and provisions of OAS member states that restrict the human rights of persons as a consequence of sexual orientation or gender identity, and that, based on the results of this study, develop a guide aimed at encouraging the decriminalization of homosexuality.” In this same context of debate, the OAS LGBTI rights Unit was also created.

The sexual and reproductive rights advocacy efforts enhanced by Latin American civil society networks in relation to the IASHR have also meant the gradual consolidation of a public transnational space where the voice and visibility of LGTBI can be heard and seen. These processes would not have been possible, however, if they had not been backed by the existence of a strong and democratically open Inter-American System on Human Rights, and the correspondent commitment of member states in regard to respecting and protecting human rights without, ever, trying to limit the scope and effectiveness of the regional architecture of protection against violations.

When the discussions on the IASHR re-structuring started a Working Group has been established that is responsible for the critical reflection on institutional currently underway. It is crucial that the task initiated by this group is fully completed in order to ensure the strengthening and amplification of the protective capacity of the IASHR. Civil society organizations have formally requested to participate in all stages of the process and also expect their views on the re-structuring to be fully taken into consideration.

A Coalition of Human Rights Organizations of the Americas has been established to monitor and engage with the process currently conducted by the Working Group. It has produced a substantive document in which the caveats identified in the re-structuring of the IASHR are examined in detail and the position of civil society human rights advocates is made explicit in relation to all aspects that must be addressed by the Working Group in its institutional assessment [read the documment, in Spanish].

The document values positively the recognition by members states that the IASHR needs additional financing and makes explicit the expectation that this recognition is effectively translated into concrete measures. It also proposes that additional funding required to improve the IASHR must be provided, in the largest possible proportion, by the regular OAS budget and not by external financial sources, because the dependency on external funding may difficult long term planning and can leave the IAHRS prone to insecurity and uncertainty. The comment is also made that the reliance on voluntary donations, at times provided by the same member states that are subjected to the jurisdiction of the IAHRS, may negatively affect the independence and impartiality of its institutional bodies, or at least project the image of undue political influence.

The Coalition core view is that the effective strengthening of the IAHRS not solely depends on the improvement of rules and practices of its various instances. It also requires the adoption of decisive steps on the part states themselves to ensure greater articulation between state policies in relation to the regional dimension of human rights protection. The document also calls for a consistent and systematic oversight of states’ roles as collective guarantors of the integrity of the ISHR. As correctly remarked by the Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM) the strengthening of the ISHR is vital for civil society organizations – such as women’s groups, feminist initiatives and human rights networks — work for the promotion and defense of human rights in the region as whole. It is crucial, therefore, that we fully engage in monitoring and defending the gains we have already achieved, which must be seen, not as our gains, but as a heritage of all people of the Americas. The development and destiny of the ISHR can not been seen as a matter pertaining exclusively to states.